In Defense of Bradley Smith

Commentary by Pete du Pont

"He hates campaign finance reform, Bradley Smith does," Mr. Clinton said. No, Mr. President. Bradley Smith favors campaign finance reform. Real reform, that is, not just writing a new bunch of regulations that Democrats and Republicans alike will immediately find ways to get around.

Smith is the law professor from Capital University in Columbus, Ohio, whom Clinton nominated - very reluctantly - to be a member of the Federal Election Commission. Smith has written extensively, in both scholarly publications and newspapers, challenging the wisdom and workability of the Federal Election Campaign Act (FECA), which created the commission.

Republicans and Democrats each nominate three commissioners, and Smith has been nominated for one of the Republican positions. The nomination has been approved by the Senate Rules and Administration Committee, but still faces confirmation by the full Senate. Although Smith has concluded that the campaign finance law is ineffective and should be repealed, he has pledged, if confirmed, to follow its provisions - which is more than the president or Al Gore, who has declared Smith "unfit for the office," have done.

Smith's critics have compared him to the Ku Klux Klan, Slobodan Milosevic and the Unabomber. Why are they so vehement? Because he challenges conventional wisdom. He points out that campaign spending laws protect incumbents and special interests. Worst of all, he uses impeccable scholarly research to back up what he says.

In an article in the January 1996 issue of the Yale Law Journal, he wrote, "Reform proposals inherently favor certain political elites, support the status quo, and discourage grassroots political activity. Even if these proposals worked as intended, they would have an undemocratic effect on American elections."

That is not what self-described reformers want to hear. It is an article of faith among them that the FECA doesn't work because they just haven't written the right regulations yet. Their watchword is that we spend too much on political campaigns - much of it on negative advertising - and money from special interest groups (not their group, which is pure at heart, but everybody else's) influences both elections and how elected officials vote.

For example, E. Joshua Rosenkranz, president of the Brennan Center for Justice at the New York University School of Law, recently condemned Smith for "the ostrich-headed view that 'money's alleged corrupting effects are far from proven.'" What Smith has actually said is that those who have studied voting patterns on a systematic basis are almost unanimous in finding that campaign contributions affect very few votes in the legislature. He has further said that studies show that while a candidate with little or no money to spend isn't likely to win most races, higher spending does not necessarily translate into victory.

I think something else Smith wrote puts a finger on what motivates those whose minds are made up about campaign finance reform regardless of what the facts say: "Campaign finance reformers seem to envision a world in which career officeholders, freed from the corrupting influence of money, lobbyists, and - dare it be said? - public opinion, would produce good, wise and fair legislation."

The reformers are down on negative advertising, too. I don't think there's anything in the FECA about negative advertising, but the reformers think there ought to be. But there's a big obstacle - the free speech guarantee in the U.S. Constitution. Sen. John McCain said last fall, "If I could think of a way constitutionally, I would ban negative ads." And a couple of years ago House Minority Leader Richard Gephardt seriously proposed amending the First Amendment because "we have two important values in direct conflict: freedom of speech promoted through billions of dollars in 30-second negative ads and our desires for healthy campaigns in a healthy democracy."

Smith doesn't follow the politically correct line there either, noting that we've had negative campaigning in American elections since 1796 and suggesting that "negative advertising that is relevant to the issues can serve the public well." However, he says, even if eliminating negative advertising were a good thing, "Less spending only reduces the amount of communication, not any negative tone of that communication."

As I understand it, Smith favors repealing the FECA altogether and simply requiring that all campaign contributions be disclosed fully and immediately. But he isn't coming to Washington to push his reform agenda. Rather, he said at the committee hearing, "I will act to enforce the law as it is, even when self-styled reform groups or other special interests would urge the commission to enforce the law as they would like it to be, but as it is not."

Contrary to what his critics say, we can expect Bradley Smith to be a good commissioner. One reason is that he, unlike so many of the would-be reformers, is not confused about what the First Amendment says.

 

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The National Center for Policy Analysis is a public policy research institute founded in 1983 and internationally known for its studies on public policy issues. The NCPA is headquartered in Dallas, Texas, with an office in Washington, D.C.